McNeill v Clarence Valley Council

[2024] NSWLEC 85

Land and Environment Court

New South Wales

Medium Neutral Citation:

McNeill v Clarence Valley Council [2024] NSWLEC 85

Hearing dates:

16 August 2024

Date of orders:

16 August 2024

Decision date:

16 August 2024

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) Proceedings 2024/261604 (Class 4) are dismissed with costs, including the costs of Council’s notice of motion in those proceedings heard 16 August 2024, as agreed or assessed.

(2) No order as to costs of proceedings 2024/230994 (Class 3), including in relation to the costs of the notice of motion in those proceedings heard on 16 August 2024.

Catchwords:

NOTICE OF MOTION — application for dismissal of claims — r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — frivolous and vexatious proceedings — no reasonable cause of action disclosed

COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order

COSTS — r 4.2 of the Land and Environment Court Rules 2007 (NSW) — whether public interest litigation — countervailing considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 8.7, 9.45

Land and Environment Court Act 1979 (NSW) s 20

Local Government Act 1993 (NSW) s 733

Protection of the Environment Administration Act 1991 (NSW) s 6

State Emergency and Rescue Management Act 1989 (NSW)

Clarence Valley Local Environmental Plan 2011 (NSW) cll 5.21, 5.22

Land and Environment Court Rules 2007 (NSW) rr 3.7, 4.2

Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 13.4, 42.1, 42.19

Cases Cited:

Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) (2010) LGERA 280; [2010] NSWLEC 59

Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201; 47 ALJR 519

Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 8

El Khouri v Gemaveld Pty Ltd (2023) 245 LGERA 24; [2023] NSWCA 78

Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 126 LGERA 365; [2004] NSWLEC 434

Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148

Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1971] 1 All ER 150

Category:

Principal judgment

Parties:

Craigh McNeill (Applicant, Respondent on the motions)
Clarence Valley Council (Respondent, Applicant on the motions)

Representation:

Mr McNeill appeared in person by audiovisual link

Solicitors:
M Cottom, Local Government Legal (Respondent, Applicant on the motions)

File Number(s):

2024/230994; 2024/261604

Publication restriction:

Nil

JUDGMENT

Introduction

1. There were two notices of motion before the Court today. Both motions filed by the respondent, Clarence Valley Council (Council), are identical in their terms, seeking to dismiss two separate sets of proceedings brought by the applicant, Mr Craigh McNeill.

Council’s notices of motion

2. On 31 July 2024, Council filed a notice of motion in Class 3 proceedings 2023/230994 seeking:

1. That the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. That the applicant pay the respondent’s costs of these proceedings, including costs of this motion (Council’s Class 3 motion).

3. Also on 31 July 2024, Council filed an identical notice of motion in Class 4 proceedings 2023/26104 (Council’s Class 4 motion).

Background to the Class 3 proceeding

4. On 23 June 2024, Mr McNeill, the applicant in both proceedings and the respondent to both notices of motion, filed an application in Class 3 of the Court’s jurisdiction which attached a Class 1 application form seeking an “[i]njunction against council's flood planning and evacuation procedures under section 8.7 of the Environmental Planning and Assessment Act 1979” (the Class 3 proceeding). The documents attached to the application were:

1. a notice of motion form;

2. an affidavit of Mr Craigh McNeill dated 23 June 2024;

3. a document titled “Annexure A to Notice of Motion filed 24/6/2024”;

4. a one page document titled “The Floodplain Area”; and

5. a two page document titled “Exhibit D Action Summary”.

5. The Class 3 application filed by Mr McNeill attached a notice of motion which did not nominate the class of the Court’s jurisdiction in which the proceedings were brought, and which identified some 26 orders sought.

6. The Class 3 proceedings were brought against Council as first respondent, the Land and Environment Court as second respondent, and the Northern Regional Planning Panel as third respondent.

7. On 24 June 2024, Mr McNeill filed a notice of motion (Mr McNeill’s Class 3 motion) which stated that “[t]he orders sought are set out in Annexure A to this Notice of Motion”. Annexure A consisted of 50 pages of material.

8. On 25 June 2024, Mr McNeill’s Class 3 motion came before me as duty judge. On that occasion, Mr McNeill told the Court that:

… I’m not quite clear on the classes and there was a bit of an issue as to which section of the Act that it actually applied to, and my understanding was that it was in relation to a development application and therefore came through under the Act that I quoted on the application [s 8.7 of the EPA Act] …

9. On 25 June 2024, I said to Mr McNeill as follows:

One of the documents that you have filed refers to an application class 3. Another, an application class 1.

…

I am very disinclined to proceed to hear the notice of motion seeking interlocutory relief in circumstances where it's not clear what jurisdiction of the Court you're invoking whether it's class 1 or class 3 or class 4, what it is you're seeking to injunct.  I … can't provide legal advice from the bench…But I would strongly suggest that you obtain legal advice before you seek to agitate your motion further. ...

10. The Court adjourned the matter to 5 July 2024 so that Mr McNeill could obtain legal advice. I also informed Mr McNeill of the availability of a duty solicitor at the Court.

11. On 5 July 2024, the Class 3 proceedings and Mr McNeill’s Class 3 motion came before Robson J as list judge. His Honour made orders including:

…

2. The Applicant is given leave to file and serve on Council an amended claim in Class 4 by 19 July 2024.

3. Council to review and correspond with the Applicant in relation to the amended pleading.

…

5. The return date in the "Class 3 proceedings 2024/230994" filed by Mr Craigh McNeill is vacated with the intention that those Class 3 proceedings will be discontinued when the Class 4 proceedings have been filed.

12. At the appearance on 5 July 2024, Robson J informed Mr McNeill about his exposure to costs in Class 4 proceedings, and that he did not have “infinite chances” to amend his pleadings.

Background to the Class 4 proceedings

13. On 10 July 2024, Mr McNeill filed a summons in Class 4 of the Court’s jurisdiction. The orders sought referred to “[t]he detailed relief claimed is attached as ‘Annexure A AMENDED Orders.pdf and Annexure A AMENDED Orders V2.pdf. to NOTICE OF MOTION Amendment-202403994.pdf.’” (the Class 4 proceeding).

14. In the Class 4 summons, Mr McNeill sought 12 orders, including injunctions, “detailed assessments”, “immediate corrective actions” and “[a]n order declaring that the Respondent (Clarence Valley Council) bears the burden of proof to demonstrate” certain matters concerning floodplain management. The annexure to the summons was some 55 pages in length.

15. Also on 10 July 2024, Mr McNeill filed a notice of motion in which he sought the same relief as in the summons, but with various prayers for relief that had been struck through in the summons removed entirely (Mr McNeill’s Class 4 motion). The prayers for relief in the notice of motion were 49 pages in length. On 13 August 2024, Mr McNeill filed points of claim which contain the following 12 orders presently sought by Mr McNeill. The 12 orders are extracted below:

Order 27: Burden of Proof

An order declaring that the Respondent (Clarence Valley Council) bears the burden of proof to demonstrate that:

a) The Lower Clarence Flood Model Update 2022 is accurate, reliable, and fit for purpose in assessing flood risks and determining Flood Planning Levels;

b) The proposed interim Flood Planning Levels adequately address all relevant flood risks, including climate change impacts;

c) Any developments approved based on the Lower Clarence Flood Model Update 2022 or the interim Flood Planning Levels will not increase flood risks or adversely impact flood behaviour.

Order: 1 Injunction to Prevent Adoption of Interim Flood Planning Levels

An injunction restraining the Respondent from:

a) Adopting the proposed interim Flood Planning Levels derived from the Lower Clarence Flood Model Update 2022, specifically the 1% AEP 2090 Climate Change (RCP 4.5) scenario as the Defined Flood Event+ 500mm Freeboard;

b) Modifying Floodplain Management Controls in its Development Control Plans to align with the interim Flood Planning Levels;

c) Approving any new developments based on the interim Flood Planning Levels;

d) Approving any new developments based on the Lower Clarence Flood Model Update 2022;

e) Relying on or utilising the Lower Clarence Flood Model Update 2022 for flood emergency planning purposes, including the Clarence Valley Local Flood Emergency Sub Plan;

Until the flood model is revised or a new model is produced to address the identified errors and deficiencies.

Order 2: Injunction to Halt Further Development in the West Yamba Urban Release Area

An injunction restraining the Respondent from approving any further filling, development activities, or modifications within the West Yamba Urban Release Area (WYURA) that could exacerbate the diversion of floodwaters towards residential areas, until appropriate corrective actions are taken.

Order 3: Corrective Actions to Restore Natural Flow of Floodwaters

An order compelling the Respondent to take immediate corrective actions to restore the natural flow of floodwaters within the West Yamba Urban Release Area (WYURA) by:

a) Clearing identified filled areas that have obstructed designated floodways;

b) Removing unauthorised fill or development encroaching upon flood storage areas;

c) Implementing mitigation measures to prevent diversion of floodwaters towards residential areas

Order 7: Comprehensive Wave Runup Study for Yamba

An order requiring the Respondent to conduct a comprehensive wave runup study for Yamba, as recommended in the 2009 Yamba Floodplain Risk Management Plan, to accurately assess the impacts of wave runup on flood levels and extents.

Order 10: Addressing Inadequacies in the Clarence Valley Local Flood Emergency Sub Plan

An order compelling the Respondent to address the inadequacies in the Clarence Valley Local Flood Emergency Sub Plan, specifically:

a) Incorporating climate change projections and impacts into flood risk assessments, modelling, and emergency planning provisions, as required by relevant legislation and policies;

b) Rectifying errors in the 1% AEP CCl design flood levels and ensuring accurate flood data is used for emergency planning and response;

c) Updating hazard and risk information, including population and property data, to reflect current demographics and flood exposure;

d) Revising resupply strategies for essential goods and services, particularly for the Coles supermarket, considering its vulnerability to flooding and isolation;

e) Correcting underestimations of impacted dwellings and ensuring consistency in flood level data and risk assessments;

f) Providing detailed and specific evacuation procedures for Yamba residents, including trigger points, evacuation routes, centres, and logistics for evacuating vulnerable populations and those without private transportation;

g) Developing contingency plans for the timely and safe evacuation of potentially thousands of Yamba residents, considering the limitations of using flood boats and helicopters;

h) Identifying and designating adequate evacuation centres that can accommodate the expected number of evacuees and are not at risk of inundation during probable maximum flood scenarios;

i) Engaging with the Yamba community and stakeholders to ensure they are informed, prepared, and able to respond effectively to flood emergencies.

Order 13: Independent Third-Party Review of the Lower Clarence Flood Model Update 2022

An order for an independent third-party review of the Lower Clarence Flood Model Update 2022:

a) The review should be conducted by a qualified and impartial expert in flood risk management;

b) The expert should provide a detailed report on the accuracy and reliability of the flood model, including recommendations for any necessary revisions;

c) That the community be involved in the review of the Lower Clarence Flood Model Update 2022,

Order 22: Comprehensive Review and Recalculation of the 1% AEP Storm Tide Peak

An order requiring a comprehensive review and recalculation of the 1% AEP storm tide peak, incorporating all relevant factors including:

a) Local coastal geography

b) Storm surge-related tidal anomalies

c) Surface gravity waves

d) Wave runup.

Order 23: Detailed Assessment of the Yamba River Gauge

An order for a detailed assessment of the Yamba River gauge, including:

a) A thorough evaluation of its effectiveness in measuring peak riverine catchment levels;

b) The development of alternative or complementary measurement methods to accurately capture peak riverine catchment levels, addressing the “delta effect” issue.

Order 24: Comprehensive Analysis of Lake Wooloweyah's Independent Actions

An order mandating a comprehensive analysis of Lake Wooloweyah's independent actions, including:

a) A detailed study of Lake Wooloweyah's hydrodynamics;

b) An analysis of its interactions with the broader flood system.

Order 25: Reassessment of the Clarence River Entrance Type Classification

An order requiring a reassessment of the Clarence River entrance type classification, including:

a) A thorough evaluation of whether it should be classified as a Type B rather than a Type A entrance;

b) An analysis of the implications of this classification for flood modelling.

Order 26: Such Further or Other Orders as the Court Deems Appropriate

An order for such further or other orders as the Court deems appropriate.

16. The points of claim are 55 pages in length. In relation to each of the orders sought, there is detail in relation to the “specificity of decision”, “identity of the decision-maker”, “terms of the Decision of the Reviewed”, “Description of the Affected Area”, “Relation to Development Assessment”, “Grounds for Relief”, “Relief Sought in Respect of the Whole of Part of the Decision”, “Justiciability”, “Burden of Proof”, “Evidence”, “Public Interest Justification”, and “Separation of Policy and Administrative Functions”.

17. Mr McNeill’s key concerns appear to relate to Council’s resolution “07.24.093” on 25 June 2024 to adopt the Lower Clarence Flood Model Update 2022. This resolution included a 1% annual exceedance probability (AEP) 2090 Climate Change scenario and a 1% AEP storm tide peak. Mr McNeill is concerned that the Lower Clarence Flood Model Update 2022 may contain errors and inconsistencies, leading to an underestimate of flood risks. In particular, in the orders sought in his points of claim Mr McNeill draws attention to the lack of a wave runup study which he says was recommended by the 2009 Yamba Floodplain Risk Management Plan. Mr McNeill is concerned about Council’s possible reliance on the Lower Clarence Flood Model Update 2022 in modifying floodplain management controls in its Development Control Plan, approving development applications (in particular in the West Yamba Urban Release Area (WYURA)) and the updating of the Clarence Valley Local Flood Emergency Sub Plan.

18. A number of the orders sought in the points of claim address the “errors and inconsistencies” in the Lower Clarence Flood Model Update 2022. To address those “errors or inconsistencies” Mr McNeill seeks to have Council obtain an independent review of the model, detailed assessment of the Yamba River gauge, reassessment of the Clarence River entrance type classification, detailed study of Lake Wooloweyah’s hydrodynamics, review and recalculation of the 1% AEP storm tide peak, a wave runup study for Yamba, an update of the Clarence Valley Local Flood Emergency Sub Plan, and corrective actions to restore natural flow of floodwaters within the WYURA.

Subsequent procedural background

19. On 25 July 2024, Mr McNeill filed a notice of discontinuance of the Class 3 proceedings brought against the second respondent (the Land and Environment Court) and the third respondent (the Northern Regional Planning Panel), but not against the first respondent, Council.

20. On 31 July 2024, Council filed its Class 3 and Class 4 motions and two separate affidavits of Mr Mark Cottom, solicitor for Council, affirmed on 31 July 2024.

21. On 14 August 2024, Council filed in the Class 4 proceedings a further affidavit of Mr Cottom affirmed on 14 August 2024. In that affidavit, Mr Cottom deposed to Mr McNeill having emailed Council on 13 August 2024 referring to a further Class 4 proceedings commenced by him against Council (2024/296515), and attaching unsealed copies of Court documents dated 12 August 2024 in substantially identical terms to the existing Class 4 proceedings.

22. In advance of the hearing of Council’s motions before me today, on 13 August 2024, Mr McNeill filed written submissions in the Class 3 and Class 4 proceedings. Mr McNeill’s submissions filed in the Class 4 proceedings addressed his Class 3 and Class 4 motions, and did not address the issues raised in Council’s notices of motion filed 31 July 2024. Mr McNeill’s submissions filed in the Class 3 proceedings addressed his decision to discontinue the Class 3 proceedings, and the question of costs.

23. Council’s Class 3 and Class 4 motions were listed for hearing before me today, Friday, 16 August 2024.

24. At the hearing, Mr McNeill confirmed that he had no expertise in relation to flood modelling, had not retained an expert in relation to flood modelling, and that he had prepared his Class 4 points of claim without any legal advice.

Issues

Discontinuance of the Class 3 proceedings

25. On 12 August 2024, Mr McNeill served on Council a notice of discontinuance in the Class 3 proceedings. As at 3:15pm on Friday, 16 August 2024 no notice of discontinuance had been filed. In Court on 16 August 2024, Mr McNeill stated that he had encountered technical issues uploading the notice of discontinuance through Online Registry, and that he had sent the notice of discontinuance to the Court from Berridale on 13 August 2024 by post.

26. Council did not consent to the filing of the notice of discontinuance in the Class 3 proceedings “unless it includes a requirement that the applicant pay its costs of those proceedings as agreed or assessed”.

27. As Mr McNeill did not agree to Council’s application for costs in the Class 3 proceedings, he required leave of the Court pursuant to r 12.1(1)(b) of the UCPR to file a notice of discontinuance.

28. At the hearing of Council’s notices of motion today, I made an order that in proceedings 2024/230994 (Class 3) the applicant is granted leave to file a notice of discontinuance pursuant to 12.1(1)(b) of the UCPR by close of business on Friday, 23 August 2024.

Dismissal of the Class 3 proceedings and Class 4 proceedings

29. By its notice of motions, Council seeks that each of the proceedings be dismissed with costs. However, at the hearing before me today, Council did not seek to move on prayer 1 of its Class 3 notice of motion; that is, Council did not seek an order that the Court dismiss the Class 3 proceedings.

Relevant legislation and legal principles

30. Rule 13.4 of the UCPR provides in relation to frivolous and vexatious proceedings:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

31. Rule 12.1(1) of the UCPR provides in relation to the discontinuance of proceedings:

(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant—

(a) with the consent of each other active party in the proceedings, or

(b) with the leave of the court.

32. Rule 42.1 of the UCPR provides in relation to costs:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

33. Section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides:

4.15 Evaluation

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a) is not entitled to take those standards into further consideration in determining the development application, and

(b) must not refuse the application on the ground that the development does not comply with those standards, and

(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

34. Section 8.7 of the EPA Act provides:

8.7 Appeal by applicant—applications for development consent

(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2) For the purposes of this section, the determination of an application by a consent authority includes—

(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

(b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

35. Section 9.45 of the EPA Act provides:

9.45 Restraint etc of breaches of this Act

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4) (Repealed)

36. Section 20 of the Land and Environment Court Act 1979 (NSW) (LEC Act) relevantly provides:

Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement

(1)  The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of the following—

…

(c) proceedings under section 9.45 of the Environmental Planning and Assessment Act 1979,

…

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings—

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

…

37. Rule 4.2 of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) provides in relation to proceedings brought in the public interest:

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

(2) The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent’s costs if it is satisfied that the proceedings have been brought in the public interest.

(3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to—

(a) the injunction or order sought by the applicant, or

(b) an undertaking offered by the respondent in response to the application, if it is satisfied that the proceedings have been brought in the public interest.

38. Clause 5.21(1)(c) Clarence Valley Local Environmental Plan 2011 (CVLEP 2011) provides:

5.21 Flood planning

(1) The objectives of this clause are as follows—

…

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

39. Clause 5.22(1)(c) of the CVLEP 2011 provides:

5.22 Special flood considerations

(1) The objectives of this clause are as follows—

…

(c) to avoid adverse or cumulative impacts on flood behaviour,

40. The principles relevant to summary dismissal of proceedings were helpfully summarised by Robson J in Joseph v Kiama Municipal Council and Ors ^[1] at [60]-[61] as follows:

60. Although the power to summarily dismiss the proceedings is discretionary, it must be attended with caution, and it is usually only exercised in the clearest cases where it is plain and obvious that there is no issue to be tried: General Steel Industries Inc at 129-130 (Barwick CJ); Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (‘Agar v Hyde’) at [57]. The test has been framed as to whether the matter is “so obviously untenable that it cannot possibly succeed”, is “manifestly groundless” or “would involve useless expense”: General Steel Industries at 129.

61. Summary disposal therefore requires the Court to turn its mind to whether the applicant has more than a “fanciful” prospect of success: O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]. In doing so, the Court must consider whether there is an underlying cause of action, rather than simply whether one is pleaded. The Court must also take the case of the party resisting the application for summary dismissal at its highest: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200]. Proceedings will not be summarily dismissed once it appears that there is a real question to be determined and that the rights of the parties depend upon it. This is so even if the applicant’s prospects of success might be characterised as slim.

1. [2023] NSWLEC 148 at [60]-[61] (Robson J).

Evidence

41. Council read two affidavits of Mr Cottom, solicitor for Council, dated 31 July 2024.

42. Mr McNeill read the affidavit of Mr McNeill, dated 24 June 2024. Mr McNeill tendered an exhibit titled “NoM Action Summary” filed on 24 June 2024. Relevantly the exhibit shows:

27/06/2023	Email to CVC GM	‘consider the issued raised’ Potential appeal to the Land and Environment court
27/06/2023	Email to CVC GM Email to councillors	Should council adopt the Flood Model Update 2022 I will appeal the decision through the Land and Environment court. I implore Councillors to take the time to consider the issued raised.

43. Mr McNeill was cross-examined by Council, and gave evidence that on 27 June 2023 he sent an email to Council (including to the “general manager”), stating that “should the Council adopt the flood model update 2022 I will appeal the decision in the Land and Environment Court”.

Submissions

Discontinuance of the Class 3 proceedings (2024/230994)

44. At the hearing before me today on 16 August 2024, Council did not seek to move on the prayer for relief in its Class 3 motion seeking dismissal of the Class 3 proceedings. Mr McNeill told the Court that he had sent a notice of discontinuance to the Court by registered post on Tuesday, 13 August 2024.

45. I made an order granting leave to Mr McNeill to file a notice of discontinuance pursuant to r 12.1(1)(b) of the UCPR by Friday, 23 August 2024.

Costs – Class 3 proceedings: Council’s submissions

46. In relation to the costs of the Class 3 proceedings, Council submitted that regardless of whether the proceedings were discontinued or dismissed, Council should be awarded its costs. Mr McNeill’s conduct was unreasonable leading up to the commencement of the proceedings. No notice was given of his intention to commence the proceedings. This was submitted to be unreasonable given the lack of genuine urgency, and noting that the matter was adjourned to 5 July 2024 to allow Mr McNeill time to seek advice from the Court’s duty solicitor, and adjourned subsequently. Had Council been forewarned, it could have sought to avoid the commencement of proceedings and thus substantially limit the costs to which Council has incurred in defending them. On 27 June 2023, around a year before the proceedings were commenced, Mr McNeill sent two emails to Council which foreshadowed a potential appeal to the Land and Environment Court should Council adopt the Flood Model Update 2022. In oral submissions today, Mr Cottom submitted that that notice was “very brief” and “generic”.

47. Council submitted that the unreasonable conduct of Mr McNeill in the Class 3 proceedings was demonstrated firstly by the insufficient notice given to Council between the commencement of the proceedings on 23 June 2024 and the first return date on 25 June 2024. The initiating process and motion for interlocutory relief were sent to Council at about 4pm on 24 June 2024 by way of email to Council’s generic email address. The motion was listed before the Court at 10:00am on the following day, 25 June 2024. Despite Council having articulated its concerns in correspondence with Mr McNeill in a letter dated 4 July 2024, Council has had to appear on three further occasions, including at a telephone directions hearing on 5 August 2024 in proceedings that “clearly were commenced in the wrong class of the Court’s jurisdiction and were frivolous and vexatious in any case”.

48. Because of the “clear jurisdictional issues”, and the weaknesses of the asserted judicial review grounds, the Court would readily find that Mr McNeill has commenced and continued the Class 3 proceedings in circumstances where they did not have reasonable prospects of success. Further or alternatively, the commencement and continuation of the proceedings was otherwise unreasonable.

49. In oral submissions, Mr Cottom for Council submitted that the “Court went over and above to accommodate Mr McNeill’s self-represented status”. Mr Cottom said that Council disagreed that the matter was brought in the public interest.

Costs – Class 3 proceedings: Mr McNeill’s submissions

50. In relation to Council's Class 3 motion, Mr McNeill requested that given his status as a self-represented litigant, “the Court … consider procedural fairness in assessing any costs implications arising from the discontinuance”. Mr McNeill drew attention to r 42.19(2) of the UCPR which provides:

(2) Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.

51. Mr McNeill asked the Court “to consider mitigating these costs due to [his] unrepresented status and the public interest nature of the proceedings”. He submitted that the “proceedings are brought in the public interest to ensure accurate flood risk assessments and protect the community from potential flood hazards”. Further, he submitted that he has “acted in good faith to address these significant issues affecting my community”.

52. In the points of claim, Mr McNeill says that decisions in reliance on the Lower Clarence Flood Model Update 2022 raise public safety concerns as it “may contain errors or inconsistencies … leading to an underestimation of flood risks”. Mr McNeill also says the adopted interim flood planning levels “do not sufficiently consider severe evacuation challenges”.

53. In oral submissions, Mr McNeill asked the Court to consider his “position as unrepresented and trying to negotiate this system of the presentation of information that is required before the Court”.

54. In response to Council’s submission that he made no attempt to resolve the matter before filing proceedings, Mr McNeill submitted that he “advised the Council I would take the matter to the Land and Environment Court because the issues were serious”, and that he had “tried to communicate with Council with the notice of discontinuance before I could get it to the Court”.

55. Mr McNeill submitted that he obtained legal advice before commencing any proceedings, and that the costs were prohibitive. He also submitted that he received legal advice from the duty solicitor at the Court on 5 July 2024 following the listing before me on 25 June 2024.

Costs – Class 3 proceedings: Consideration

56. In relation to costs of the Class 3 proceedings, on 5 July 2024, Robson J gave Mr McNeill the opportunity to replead his case in Class 4, with the intention that the Class 3 proceedings would then be discontinued. Mr McNeill informed the Court this morning that he had endeavoured to upload a notice of discontinuance to Online Registry but could not because Online Registry said that “the case was already open”. Mr McNeill also submitted orally this morning that Berridale had a “siloed postal service”.

57. Given his circumstances as a self-represented litigant prior to obtaining advice from the Court’s duty solicitor, and his sincere belief that he had commenced the Class 3 proceedings in the public interest, I do not consider that it would be fair or reasonable to make an order for costs in the Class 3 proceedings. Upon obtaining advice from the Court’s duty solicitor, Mr McNeill has taken steps to discontinue the Class 3 proceedings, albeit he has encountered difficulties filing a notice of discontinuance.

58. For the reasons given above, I have determined to make no order as to costs in the Class 3 proceedings.

Dismissal – Class 4 proceedings (2024/261604): Council’s submissions

59. In relation to the Class 4 proceedings, Council submitted that those proceedings should be dismissed pursuant to r 13.4 of the UCPR. Taking a cautious approach to the summary dismissal of proceedings, Council submitted that the Court would be satisfied that there is no issue to be tried, there was no underlying cause of action, and this could not be cured by further amendments (which Mr McNeill has attempted numerous times).

60. The Class 4 proceedings, Council submitted, essentially seek judicial review of flooding-related policy functions of Council. Mr McNeill had not identified any decision made by Council amenable to judicial review, and was effectively seeking judicial review of non-justiciable functions of Council.

61. Further, Council submitted that Mr McNeill endeavours to provide his own lay evidence disputing the accuracy of flood modelling and related flood policy functions of Council, particularly concerning the WYURA. Mr McNeill asserted no miscarriage in the exercise of any statutory discretion of Council, rather factual errors “clothed” as judicial review grounds.

Dismissal – Class 4 proceedings (2024/261604): Mr McNeill’s submissions

62. In oral submissions, Mr McNeill addressed the orders sought in the points of claim filed on 13 August 2024. He agreed that all 12 orders “concern essentially the same issue” which is “the flooding issue” relating to the accuracy of the Lower Clarence Flood Model Update 2022. Mr McNeill also agreed that there was a “degree of repetition in relation to [the] order” sought in the points of claim.

63. When asked by the Court, Mr McNeill confirmed that he did not have expertise in relation to flood modelling and had not provided the Court with any expert evidence in relation to flood modelling. In relation to how the orders he seeks are available grounds of judicial review in Class 4 proceedings, Mr McNeill said "there are administrative decisions that come into play that affect the outcome of these events ... relate to the environmental and planning law". He further submitted that the “justification for the burden of proof on Council” is the failure of Council to follow “guidelines”.

Dismissal – Class 4 proceedings (2024/261604): consideration

64. The power to dismiss a claim at an interlocutory stage is only appropriately exercised where an applicant’s claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: Cox v Journeaux (No 2) ^[2] at 720 (Dixon J). The cases emphasise the exceptional nature of the power, and the correspondingly restricted circumstances in which its exercise is appropriate: Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd. ^[3] On an application for dismissal under r 13.4(1) of the UCPR, a liberal construction should be given to the contentious pleading: Mutual Life & Citizens Assurance Co Ltd v Evatt. ^[4]

    2. (1935) 52 CLR 713 at 720; [1935] HCA 8 (Dixon J).

    3. (1973) 1 ALR 201; 47 ALJR 519.

    4. (1970) 122 CLR 628 at 631; [1971] 1 All ER 150.

64. I have determined that the factual dispute sought to be agitated by Mr McNeill is beyond the permissible scope of the judicial review functions of this Court. Accordingly, the proceedings should be struck out pursuant to r 13.4(1) of the UCPR. As Council submitted, in order for the Court to have power to make any of the 12 orders sought the Class 4 proceedings, Mr McNeill would need to demonstrate on the balance of probabilities that:

1. Council has breached the EPA Act for the purposes of s 9.45 of the EPA Act, as referred to in s 20(1)(c) of the LEC Act;

2. the EPA Act confers a right that is enforceable by Mr McNeill against Council, or imposes an enforceable obligation on Council, as referred to in s 20(2)(a) of the LEC Act; and/or

3. a function conferred or imposed on Council by the EPA Act that is amenable to judicial review and/or relief in the nature of mandamus for the purposes of s 20(2)(b) of the LEC Act.

66. One fundamental problem with the orders sought by Mr McNeill in his Class 4 points of claim, as Council submitted, is that they are premised on a reversal of the onus of proof in civil proceedings. For example, in Order 27, Mr McNeill seeks that Council “bears the onus of proof”. Another fundamental problem is that even if Mr McNeill has identified a relevant administrative decision amenable to judicial review, which I find he has not, he has conflated Council’s flooding-related policy functions with its development assessment function under s 4.15 of the EPA Act, particularly in relation to the WYURA. The flooding-related policy functions (such as Council’s adoption on 25 June 2024 of proposed interim Flood Planning Levels derived from the Lower Clarence Flood Model Update 2022) are not justiciable, and, as Council submitted, “are at least one step removed from any development assessment function”.

67. Further, Mr McNeill has not identified how any particular development assessment decision (whether existing or proposed) could be invalidated by the exercise of a policy-making function of Council in relation to flood planning “at large”. Ultimately, I have found that the orders sought by Mr McNeill related to the merits of the exercise by Council of its functions, rather than the legality of any administrative decision made by it.

68. The principal statutory provisions identified by Mr McNeill in his points of claim filed 12 August 2024 are ss 4.15(1)(b) and (c) of the EPA Act, and cll 5.21(1)(c) and 5.22(1)(c) of the CVLEP 2011. The other documents referred to in his Class 4 points of claim (such as the Lower Clarence Flood Model Update 2022) are not planning or environmental laws within the meaning of s 20(2) of the LEC Act, such as to enliven the Court’s Class 4 jurisdiction. Nor are they referred to in the statutory provisions identified by Mr McNeill in the points of claim.

69. There are some isolated references to other statutory provisions in the Class 4 points of claim. However, as submitted by Council, these can be dismissed as lacking substance:

1. the grounds for proposed Order 1 refer to “potentially violating principles of ecologically sustainable development under Section 6(2) of the Protection of the Environment Administration Act 1991”. A similar statement is made in relation to Order 7. Section 6 of the Protection of the Environment Administration Act 1991 (NSW) sets out the objectives of the Environment Protection Authority. It is not related to judicial review of any decision of Council or enforcement of any Council functions, powers or duties;

2. the grounds for Order 1 also state that Council’s actions “may not comply with legislative requirements such as the Local Government Act 1993 and the State Environmental Planning Policy (Flood Planning) 2021”. Mr McNeill does not particularise the “requirements” of that policy in his points of claim, nor how any such requirements were breached or threatened to be breached by Council;

3. in relation to Order 2, the grounds in the points of claim state that “[a]pproving specific development applications, filling activities, and modifications within the WYURA must comply with the Environmental Planning and Assessment Act 1979 and the Clarence Valley Local Environmental Plan 2011”. And in relation to proposed Orders 23 and 24, the grounds refer to “planning legislation, such as the Environmental Planning and Assessment Act 1979”, and state that the failure to consider Lake Wooloweyah’s interactions with the broader flood system “may compromise the effectiveness of flood sub plans required under the State Emergency and Rescue Management Act 1989”. Again, no particular provision of that legislation is identified in the points of claim, nor is it said how any such provision was contravened in the circumstances here;

4. in relation to Order 13, the grounds in the points of claim for proposed Order 13 appear to allege that without an independent review of the Lower Clarence Flood Model Update 2022, Council might violate its duty of care under s 733 of the Local Government Act 1993 (NSW). According to the Class 4 points of claim, this provision “requires councils to act in good faith when managing flood liable land”. Section 733 of this Act does not create a duty of care or require councils to act in good faith when managing flood table land. Rather, it creates a statutory exemption from civil liability where in s 733(1)(a) or (b), 2(a) or (b) and 2A(a) or (b) apply. It is not a provision amenable to civil enforcement for a “breach” of the Act. Nor does it attach to an administrative decision that is susceptible to judicial review; and

5. in relation to Order 25, the grounds in the points of claim assert a violation of “Clause 8 of the State Environmental Planning Policy (Resilience and Hazards) 2021 which outlines flood planning principles that must be considered in development applications on flood-prone land”. There is no cl 8 in that environmental planning instrument, nor is there any other provision within it to the effect asserted by Mr McNeill.

70. In his points of claim in the Class 4 proceedings, Mr McNeill has not pleaded any alleged contravention of s 4.15(1)(a) of the EPA Act (nor could he reasonably do so). Rather, he has focussed upon provisions of environmental planning instruments such as cll 5.21 and 5.22 of CVLEP 2011. In this regard, the following observations of Leeming JA (Gleeson and Adamson JJA agreeing) in El Khouri v Gemaveld Pty Ltd ^[5] (El Khouri) at [61] are apposite:

Local environmental plans (and other environmental planning instruments) are important, but not because they directly create rights and obligations, let alone offences. Instead, they operate in conjunction with primary and delegated legislation which themselves create rights and obligations and offences.

5. (2023) 245 LGERA 24; [2023] NSWCA 78 at [61] (Leeming JA) (Gleeson and Adamson JJA agreeing).

71. In other words, a failure to comply with a provision of an environmental planning instrument is not of itself amenable to judicial review. Even if a “breach” were to be established by Mr McNeill in a particular case, any judicial review would fail, the instrument itself not creating rights and obligations.

72. In any event, compliance with provisions of environmental planning instruments that are part of a consent authority’s mandatory relevant considerations under s 4.15(1)(a) of the EPA Act in determining a development application is not a jurisdictional prerequisite to the power to grant consent: El Khouri at [74] (Leeming JA). Even if Mr McNeill were to plead such a “breach”, and there were admissible evidence in relation to a particular development application or development consent, no relief could be granted by the Court.

73. The asserted failures by Council to comply with s 4.15(1)(b) and s 4.15(1)(c) of the EPA Act concerning assessment of environmental impacts and site suitability suffer from similar difficulties. In addition to the matters of functional separation between flood policy development on the one hand, and the assessment and determination of development applications on the other, following the reasoning of the Court of Appeal in El Khouri at [53], the consideration of environmental impacts and site suitability is mandatory, but not amenable to “jurisdictional fact” review in any case:

53.Thus on the reasoning upheld by this Court in Ross v Lane, compliance with cl 4.3 of the Kogarah LEP being a matter to which regard was required pursuant to s 4.15(1)(a) was not a jurisdictional fact. … The same considerations based on the structure of s 4.15(1) apply – namely, that paragraphs (b), (c), (d) and (e) are all evaluative and could not plausibly be regarded as jurisdictional facts…

74. As Council submitted, Mr McNeill has made numerous attempts to amend his pleadings. I do not consider the deficiencies to be curable. Accordingly, I exercise the Court’s discretion to summarily dismiss the proceedings in their entirety. I have found that the Class 4 proceedings are frivolous or vexatious within the meaning of r 13.4(1)(a) of the UCPR, and disclose no reasonable cause of action within r 13.4(1)(b) of the UCPR.

Costs – Class 4 proceedings: Council’s submissions

75. In relation to the costs of the Class 4 proceedings, Council submitted that the general rule in r 42.1 of the UCPR that costs follow the event should apply, including in relation to the costs of Council’s motion, heard today, and that the Court’s discretion pursuant to r 4.2 of the LEC Rules or otherwise should not be exercised in Mr McNeill’s favour. Council referred to and repeated its submissions in relation to costs in the Class 3 proceedings.

Costs – Class 4 proceeding: Mr McNeill’s submissions

76. Mr McNeill made no written submissions in relation to costs of the Class 4 proceedings. I have considered his written submissions in relation to costs of the Class 3 proceedings. At the hearing today, Mr McNeill essentially repeated his submissions in relation to the Class 3 proceedings as set out above.

Costs – Class 4 proceedings: Consideration

77. In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2),^[6] Lloyd J at [15] said as follows in relation to whether proceedings can be characterised as public interest litigation:

15. There are several matters that may be considered in determining whether the proceedings can be characterised as public interest litigation. These may conveniently be summarised as follows:

[a] The public interest served by the litigation: Darlinghurst Residents’ Association v Elarossa Investments Pty Ltd (No. 3) (1992) 75 LGRA 214 at 215; Liverpool City Council v Roads and Traffic Authority (No. 2) (1992) LGRA 210.

[b] Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area: Darlinghurst Residents’ Association at 215; Oshlack at 80-81.

[c] Whether the applicant sought to enforce public law obligations: Oshlack at 80 [20].

[d] Whether the prime motivation of the litigation is to uphold the public interest and the rule of law: Oshlack at 80 [20].

[e] Whether the applicant has no pecuniary interest in the outcome of the proceedings: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.

6. (2004) 126 LGERA 365; [2004] NSWLEC 434 at [15] (Lloyd J).

78. In Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) (Caroona Coal Action Group),^[7] Preston CJ of LEC at [13]-[19] set out the following three step approach in determining whether to depart from the usual costs rule in unsuccessful public interest litigation. At [13] Preston CJ of LEC states (emphasis added):

13 What principles or guidelines have courts formulated for exercising the costs discretion in public interest litigation which has been unsuccessful? A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there “something more” than the mere characterisation of the litigation as being brought in the public interest?; and thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speak against departure from the usual costs rule?

7. (2010) 173 LGERA 280; [2010] NSWLEC 59 at [13] (Preston CJ of LEC).

79. I consider that the following two countervailing considerations identified in Caroona Coal Action Group at [61] by Preston CJ of LEC weigh in favour of an award of costs here:

(e) the applicant “unreasonably pursues or persists with points which have no merit” (Oshlack v Richmond River Council at [134] per Kirby J) or issues that were not “eminently arguable”, to use Stein J’s phrase in Darlinghurst Residents’ Association v Elarosa Investments (No 3) (1992) 75 LGERA 214 at 216 and in Oshlack v Richmond River Shire Council at 245: see Drake-Brockman v Minister for Planning (No 2) at [13] and Anderson v Minister for Planning (No 2) at [30]; and

(f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation: see Trustees for time being of the Biowatch Trust v Registrar, Genetic Resources & Ors [2009] ZACC 14 at [18], [20], [24].

80. In the exercise of my discretion to decide whether to award costs pursuant to r 42.1 of the UCPR, r 4.2 of the LEC Rules or otherwise, I have decided to award Council its costs in relation to the Class 4 proceedings, including the notice of motion heard before me today, 16 August 2024 in those proceedings.

Conclusion and orders

81. The Court makes the following orders:

1. Proceedings 2024/261604 (Class 4) are dismissed with costs, including the costs of Council’s notice of motion in those proceedings heard 16 August 2024, as agreed or assessed.

2. No order as to costs of proceedings 2024/230994 (Class 3), including in relation to the costs of the notice of motion in those proceedings heard on 16 August 2024.

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Endnotes

Decision last updated: 19 August 2024